Part II: 5th Am. applies to custodial interrogation (i.e. Bram applies at station)
Part III: Police must inform Δ that he has the right to remain silent, that any statement he does make may be used as evidence against him, that he has the right to the presence of an attorney, that if he cannot afford one, one will be appointed for him
Δ may waive his/her rights provided waiver is voluntary, knowing, and intelligent
If Δ invokes right to attorney, or indicates he/she doesn’t want to be questioned no questioning
Δ can invoke the right at any time, even after some questioning
Policy
Ensures Δ knows his/her rights and police will respect them; Informs Δ this is an adversarial process; Attorney helps to mitigate the coercive problem
Criticism
If police interrogation is inherently compelling, why does hearing your rights solve the problem that the waiver could be compelled too?
How can someone who is incapable of being questioned without a lawyer be competent to make a decision about waiving their rights?
Overbroad – Constitution proscribes involuntary statements – Miranda will exclude some spontaneous voluntary statements that Bram would not
Case is more reminiscent of legislation than common law development
Note: Court indicates that some other procedure may be implemented to substitute for the Miranda warning
Key is determining the most important elements of the decision
Note Kauper suggests that the accused should be promptly brought before a magistrate for interrogation supported by the threat that refusal to answer questions will be used against Δ at trial
Custody
Beckwith v. United States (1976) – Not custody when Δ voluntarily provided papers to IRS agents, during conversation Δ was free to leave
Dissent: Miranda should apply when Δ is the focus of an investigation
Oregon v. Mathiason (1977) – Δ voluntarily shows at station, conversation for 5min with officer, lies about finding Δ’s prints at scene confession, free to go after
Holding: No indication Δ’s freedom to depart was restricted no custody
Berkemer v. McCarty (1984) – Δ suspected of DUI admits to 2 beers and smoking MJ, instructed not free to go, failed field sobriety, passed breathalyzer at stationhouse, also signed incriminating statements at stationhouse
Holding: Mirandaapplies to misdemeanors, but not to road-side questioning for routine traffic stop
Brief/temporary/public not inherently coercive
Miranda would apply if Δ is subject to treatment that renders him “in custody” for practical purposes
J.D.B. v. North Carolina (2011) – 13y/o suspected of burglary, taken from class by uniformed officer, questioned by 2 police and 2 administrators without legal guardian
Officer makes threat to put Δ in juvenile detention pending trial, Δ confesses
Holding: Age must be considered for determining whether Δ is in custody
Dissent argues Miranda is a bright line, voluntariness test kicks in when Miranda is under-inclusive
Interrogation
Rhode Island v. Innis (1980)
Δ Mirandized, invokes right to attorney, officers instructed not to question, in the car officer elicits incriminating statement by discussing possibility of a handicapped child being injured by the shotgun
Holding: Miranda kicks in for express questioning or functional equivalent
Words or actions beyond normally attendant to arrest, that the police should know are reasonably likely to elicit an incriminating response
FN7: officer intent is not dispositive but is an indicator
Will you please tell me where the shotgun is so we can protect handicapped schoolchildren from danger?
If the man sitting in the back seat with me should decide to tell us where the gun is, we can protect handicapped schoolchildren from danger
It would be too bad if a little handicapped girl would pick up the gun that this man left in the area and maybe kill herself
Test – Whether a reasonable person would consider what was said a question
Friedman argues that asking whether a reasonable suspect would feel compelled to talk erodes the rule
Illinois v. Perkins (1990) (5th Am.)
Undercover agent planted in Δ’s cell. Δ makes incriminating statements.
Holding: Statements admissible under Miranda when suspect is unaware he is speaking to police and gives a voluntary statement
Normative issue: Miranda is about coercion during custodial interrogation – use of trickery is fine without coercive circumstances
Adequate Warning
Florida v. Powell (2010)
Miranda warning deficient because it seemed to suggest Δ could only speak to his attorney before questioning, holding that it reasonably conveyed Δ’s right to attorney both at the outset and during questioning
Right to Remain Silent
Michigan v. Mosley (1975)
Δ questioned, invoked right to remain silent, Mirandized and questioned 2hrs later by different officer for different crime
Holding: Police must scrupulously honor Δ’s right to remain silent
2hr gap was sufficient since questioning stopped the first time when invoked
Westover – Δ got no warning first time, warnings for second time insufficient
Berghuis v. Thompkins (2010)
Δ refused to sign form indicating he understood Miranda, but read one of the rights out loud on the form, conflicting info about whether he verbally acknowledged – Δ remained silent during interrogation until answering “yes” to series of 3 questions at the end, last one was incriminating
Holding
Δ must unambiguously invoke right to remain silent
A suspect who has received and understood the Mirandawarnings, and has not invoked his Miranda rights, waives the right to remain silent by making an un-coerced statement to the police
Main point is reading Miranda, “heavy burden” is preponderance
Voluntariness does not consider moral/psychological pressures to confess emanating from sources other than official coercion
Sotomayor Dissenting
Makes no sense to have right to remain silent be predicated on Δ not remaining silent
Miranda and Butler establish a court “must presume that a Δ didn’t waive his rights,” the prosecution bears a “heavy burden” in attempting to demonstrate waiver; the fact of a “lengthy interrogation’ prior to obtaining statements is ‘strong evidence” against a finding of valid waiver; “mere silence” in response to questioning is “not enough;” and waiver may not be presumed “simply from the fact that a confession was in fact eventually obtained”
Friedman argues that trickery to get statement is ok, but probably not for waiver
BUT SEE Burbine – Police deception may violate Due Process if it is the kind of misbehavior that so shocks the sensibilities of civil society that would warrant exclusion of evidence
Right to an Attorney
Edwards v. Arizona (1981)
Δ invoked right to attorney, police don’t get attorney, question next day resulting in incriminating admission, Δ insists no waiver
Holding
Waiver must be a knowing and intelligent relinquishment or abandonment of a known right or privilege
When Δ invokes, waiver is not established by showing Δ responded to further police initiated custodial interrogation even if Mirandized
When Δ invokes, no interrogation until counsel is made available unless Δ himself initiates further communication with police
Δ arrested, invokes right to attorney – during jail transfer asks “well, what is going to happen to me now?” ensuing conversation gets Δ to agree to polygraph which leads to confession
While some inquiries – asking for water, use phone/bathroom – would not count, his question “evinced a willingness and a desire for a generalized discussion about the investigation”
Minnick v. Mississippi (1990)
Δ invokes right to counsel, speaks with attorney, later re-Mirandized, waives, interrogated leading to confession
Holding: When counsel is requested, police can’t reinitiate interrogation without counsel whether or not Δ has consulted with counsel
Maryland v. Shatzer (2010)
Δ interrogated in 2003 about child abuse, invoked right to counsel, questioned 2.5y later by different officer, re-Mirandized, got waiver and confession
Holding: When Δ is released from custody, returns to normal life for some time before later interrogation, little reason to think waiver is coerced
14d is long enough break in custody to re-question
Friedman argues this partially abrogates Edwards; selected especially for its egregious facts
Moran v. Burbine (1986)
Δ arrested, held at station, sister gets him a lawyer who calls station
Police lie to lawyer indicating they won’t question Δ
Waiver must be voluntary – Product of a free and deliberate choice rather than intimidation, coercion, or deception
Waiver must be made with full awareness of the nature of the right being abandoned and the consequences of the decision to abandon
Due Process
Police deception may rise to a violation of due process
On these facts, this isn’t the kind of misbehavior that so shocks the sensibilities of civil society that would warrant exclusion of evidence
Friedman argues this is backwards, right to silence should be primary concern
Admitting Evidence in Violation of Miranda
Impeachment
Harris v. New York (1971) – Holding: Voluntary statements obtained in violation of Miranda can be used for impeachment
Invoking Right to Remain Silent
Doyle v. Ohio (1976) – Holding: Can’t use post-arrest silence following Miranda warning on cross-examination – violation of DPC because silence is ambiguous
Jenkins v. Anderson (1980) – Holding: Can question Δ about why he didn’t turn himself in for 2wks on cross-examination for murder when claiming self-defense
Public Safety Exception
New York v. Quarles (1984)
Δ arrested in supermarket with empty holster, officer asks where gun is, Δ tells officer, Δ Mirandized, waiver/confession
Holding: Gun and statement admissible under “public safety exception”
Immediate need, concerns about accomplice or public injury
Miranda = custodial interrogation is inherently coercive – no balancing
These are the cases where misconduct is the biggest concern
Court is arguing that a Miranda violation does not create poisonous tree
Friedman argues that if public safety rule is real, then wouldn’t it always outweigh concerns about Miranda? Also, public safety concerns are always present WRT letting someone go
Question-First
Oregon v. Elstad (1985)
Rejects fruit of the poisonous tree doctrine for confession after initial confession then Miranda then subsequent confession
Holding: If first statement is voluntary, Δ is not disabled from waiving and confessing after later Miranda warning
Because Miranda is prophylactic, violation doesn’t create poisonous tree
If first statement isn’t voluntary poisonous tree
Missouri v. Seibert (2004)
Police practice of questioning first, getting confession, Mirandize, get waiver and written/recorded confession whether confession 2 is admissible?
In this case there is specific intent to undermine Miranda
Holding (Souter plurality): Second confession is only admissible if there is something that causally breaks the chain between the 1st and 2nd confession
Factors to find adequate curative measures:
Completeness and detail of the questions and answers in the 1st round
Overlapping content of the two statements
Timing and setting of the 1st and 2nd round of questioning
Continuity of police personnel
Degree to which the interrogator’s questions treated the 2nd round as continuous with the first
Rule – For bad faith, go to factors (Souter, Kennedy, Breyer); For good faith, go to Elstad (statement voluntary? Waiver?) (O’Connor + Kennedy)
Δ being arrested, interrupts Miranda warning indicating he understands his rights – officer asks him about his gun, Δ makes statements about gun eventually consents to search of room to get gun
Holding: Miranda protects violations of the self-incrimination clause, not implicated by admitting physical fruit of a voluntary statement
Miranda failure to warn is not a poisonous tree (only if admitted at trial)
Rule – Gun is admissible not fruit of the poisonous tree
Demonstrative vs. testimonial evidence
Stealth overrules Brewer/Nicks (physical body in violation of Massiah)
Stealth Overruling
Schulhofer
Paradox – if Miranda really has so little impact on confessions and conviction rates, why bother defending it?
Symbolic purpose is not irrelevant
The new psychological ploys are better than physical coercion
If you overrule Miranda, we’re right back to where we started
Arguments that state Miranda as a prophylactic that swings wider than the 5th Am. state that Miranda violations don’t necessarily create a poisonous tree
Therefore the violation happens when evidence is introduced at trial, not when interrogation happens (unless involuntary)
Friedman argues that the Miranda decision held that custodial interrogation is inherently compelling, thus there is no such space between Miranda and the 5th Am.
Absent something equally effective, police must use Miranda
Consider: Can’t admit un-Mirandized statements except for impeachment or public safety, BUT in drug and gun offenses you rarely need the statements
Stats: 20% of people invoke, lots of people talk for whatever reason – Limiting factor being McNabb/Mallory/City of Riverside prompt presentment
Stealth Overruling (Friedman)
Miranda is effectively overruled – Doesn’t matter if you warn, but if you do, you’re virtually guaranteed to get the statement in
Casey factors due to later doctrine have vitiated the rule
Why not just overrule? – Judicial minimalism (small steps, but see Montejo), hard to wrangle justices, stare decisis, concern about backlash (see Citizens United)
Acoustic Separation – Court doesn’t want to get bitched at for overruling Miranda
So they do it on the sly police/lower courts all behave like it is overruled
Cases discussing Seibert/Patane hinge heavily on whether the judge is a democrat or a republican
Encourages defiance of the law and makes the doctrine unclear
Miranda as Prophylactic or as Constitutional Rule
United States v. Dickerson (2000)
Holding: Miranda, being a constitutional decision of the Court, may not be overruled by an Act of Congress – governs admissibility of statements
Miranda applies against the states (must be Constitutional rule)
Legislature can make something like Miranda, but not less
Automatically provide a lawyer, video all interrogation, etc.
Miranda is embedded in routine police practice/part of national culture
Experience suggests TOTC is inadequate
Scalia Dissenting: Miranda isn’t a constitutional rule, Marbury only lets SC-USA win for interpreting Constitution, he will apply § 3501 now
Effect: Possibly overrules Quarles (balancing), Elstadmaybe ok if applying FOPT, Harris maybe ok because two separate issues butting heads
Friedman argues that either (1) Miranda is a constitutional rule, and cases allowing evidence in violation of Miranda need to be overruled/distinguished; (2) Miranda is not constitutional rule and § 3501 governs; or (3) Miranda is not constitutional rule, but court can announce “prophylactic” rules to implement the constitutional rule when details are difficult
Friedman argues that Miranda held custodial interrogation to be inherently coercive, absent some other warning or procedure to dispel the coercion, police have to do Miranda
Court argues that the violation happens when evidence is introduced at trial, not when interrogation happens no poisonous tree is created
5th Am. Violation? Miranda/voluntary?
Attached?
Massiah – Deliberate Elicitation?
Waived? (Montejo)
If violated, throw in impeachment (Ventris)
6TH AMENDMENT RIGHT TO COUNSEL
Analysis
Right to counsel attaches at the first judicial proceeding or indictment (Rothgery)
Δ has right to have counsel present at all critical stages (Rothgery)
Critical stage is any stage necessary to guarantee Δ effective assistance at trial
Interrogation is a critical stage
Government can’t deliberately elicit statements from Δ after right attaches (Brewer)
Statements to informant that deliberately elicits statements are inadmissible (Henry), but volunteered statements to an informant that does not deliberately elicit them are admissible (Kuhlmann – “Luck and happenstance”)
But informant can’t elicit statements by threatening with assault from other inmates (Fulminante)
Statements elicited from Δ about a new crime for which proceedings have not been initiated are admissible for that crime (Moulton)
Does not matter if Δ knows it is the government (Massiah/Henry)
If Δ waives right to counsel for Miranda, he also waives his 6th Am. right (Montejo)
STOP – Did Δ invoke? (Davis) – Did Δ invoke at arraignment? – May need to invoke again at questioning (unclear from Montejo)
It is unclear (not clear and knowing) Δ is waiving WRT informants (Henry)
